Citation Nr: 1429508
Decision Date: 06/30/14 Archive Date: 07/03/14
DOCKET NO. 08-17 582 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for a back disability.
REPRESENTATION
Appellant represented by: Joseph Moore, Attorney
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
A.J. Turnipseed
INTRODUCTION
The Veteran had active service from September 1955 to September 1957.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, denying the claim currently on appeal.
In June 2010, the Board remanded the Veteran's appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After completing the requested development, the AMC continued to deny the claim, as reflected in a June 2011 supplemental statement of the case (SSOC), and returned the matter to the Board for further appellate consideration.
In September 2012, the Board denied the Veteran's claim for service connection for a back disability. The Veteran, through his attorney, and VA's Office of General Counsel filed a Joint Motion for Remand ("Joint Motion") of the Board's September 2012 decision with the United States Court of Appeals for Veterans Claims ("Court"), which directed that the Board obtain private medical records identified by the record. In February 2013, the Court granted the Joint Motion and vacated and remanded the Board's September 2012 decision.
In April 2014, the Veteran's attorney submitted additional evidence and argument to the Board in support of the currently appealed claim. The additional evidence and argument included the private medical records identified in the Joint Motion and was accompanied with a waiver of initial RO consideration of the evidence. In addition, the Veteran's attorney specifically requested that the Board proceed with adjudication of the claim. Accordingly, this evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2013).
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files. A review of the documents in Virtual VA reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal, while the Veteran's VBMS file does not contain any documents at this time.
For reasons discussed below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part.
REMAND
While the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's service connection claim for a back disability can be adjudicated. After review of the record, the Board finds that a remand is needed in order to ensure that VA has satisfied its duty to assist the Veteran in the development of this claim.
Review of the record shows the Veteran has been variously diagnosed with chronic low back strain, and lumbar spine arthritis, diffuse degenerative disc disease, and spondylosis. See January 2011 VA examination report; November 2011 VHA opinion, and June 2012 VHA opinion. The Veteran contends that his current back disability arose as a result of an incident in service when a food cart fell on his back.
Review of the record shows that VA attempted to obtain the Veteran's service treatment and personnel records but, in August 2007, the AOJ determined that the records are unavailable for review, as they appear to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973 and have not been located.
Under such circumstances, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This heightened obligation does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996).
In this context, the Board notes that VA's duty to assist the Veteran includes assisting him in the procurement of service treatment records and other relevant evidence known to be in the possession of the Federal Government, such as Social Security records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
As noted, VA unsuccessfully attempted to obtain the Veteran's service treatment and personnel records. See August 2007 Memorandum. Review of the record shows that, in June 2007, VA attempted to obtain sick call and morning reports from "C Company of the 4th RCT," the unit the Veteran reported he was serving with at the time of his in-service back injury in approximately March to July 1956. See June 2007 Report of Contact. In July 2007, VA received a response indicating that a search for records was not possible based on the information provided and that information regarding the Veteran's complete unit was needed, including verification if he served with the Regiment Combat Team or the 4th Infantry Regiment.
It does not appear that the RO requested that the Veteran provide any additional identifying information regarding his unit or that a subsequent request was submitted with respect to this matter. Instead, the AOJ issued the August 2007 memorandum finding that the Veteran's service treatment and personnel records are unavailable. However, given the response received in July 2007, the Board cannot determine that no reasonable possibility exist that additional attempts to obtain the sick call and morning reports would aid in substantiating the claim. See 38 U.S.C.A §5103A (a)(2) (West 2002). Therefore, the Board finds that a remand is necessary in order for the AOJ to provide the Veteran's complete unit designation to the appropriate agency in order to obtain any relevant sick or morning reports dated March to July 1956 from the Veteran's unit. The Board notes the Veteran's DD Form 214 reflects that he served with Company M, 4th Regiment, RCT, at Fort Devens, Massachusetts.
Additionally, the Board notes that the Veteran has reported that, following the in-service back injury, he was taken by ambulance to the Fort Devens Hospital where he was placed on a ward for several days. It does not appear the AOJ attempted to contact Fort Devens Hospital directly to obtain any records of hospitalization or treatment. Accordingly, on remand, the AOJ will be requested to contact the Fort Devens Hospital directly and seek to obtain any relevant records of hospitalization or treatment for the Veteran in approximately March to July 1956.
Finally, the evidentiary record contains a portion of a February 1995 decision from the Social Security Administration (SSA) granting disability benefits based upon several impairments, including chronic sciatica affecting the Veteran's low back. Review of the record shows that VA attempted to obtain the Veteran's SSA records but, in April 2011, SSA responded that the Veteran's medical records had been destroyed. Upon further inspection of SSA's response, the Board notes that no response was received regarding whether the Veteran's complete SSA decision is available for review. Therefore, on remand, the AOJ will be requested to conduct additional attempts to determine if the Veteran's complete February 1995 SSA decision is available and, if so, associate the full decision with the evidentiary record.
In view of the foregoing, to ensure that VA has met its duty to assist the Veteran in developing the facts pertinent to the claim, and to ensure full compliance with due process requirements, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. After obtaining any additional information needed from the Veteran, contact the National Personnel Records Center (NPRC), or any other appropriate agency known or indicated, and obtain any relevant sick or morning reports from the Veteran's unit regarding a back injury that occurred in approximately March to July 1956.
If no information is received from the Veteran regarding his complete unit designation, the AOJ should note that his DD Form 214 reflects that he served with Company M, 4th Regiment, RCT, at Fort Devens, Massachusetts.
All negative responses should be fully documented in the claims file. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records.
2. The AOJ should also directly contact the hospital at Fort Devens, Massachusetts, and request all available records of hospitalization or treatment for the Veteran, including reports from 1956 and 1957. The hospital should be informed that the Veteran claims he was hospitalized around January 1956 to March 1956 and other reports show that when treated the Veteran stated that he injured his back in 1957.
All negative responses should be fully documented in the claims file. The AOJ must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records.
3. Contact the Social Security Administration (SSA) and request that it determine if the Veteran's complete February 1995 SSA decision is available and, if so, associate the full decision with the evidentiary record. All negative responses should be fully documented in the claims file.
4. Once all requested records have been associated with the claims file, or it has been determined that either the records do not exist or that further efforts to obtain them would be futile, reexamine the claims file to determine whether any supplementary development is warranted including, but not limited to, obtaining a supplemental medical opinion which considers any newly obtained evidence.
5. Thereafter, the AOJ should readjudicate the claim on appeal, taking into account all evidence associated with the record since the issuance of the June 2011 SSOC. If the claim remains denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).